by Bruce Dunlavy
(My blog home page and index of other posts may be found here.)

There has been an astonishing amount of bad news on the environmental front in the past few weeks, much of it generated by the accession to the presidency of an anti-environmentalist who has appointed an enemy of the Environmental Protection Agency to be that Agency’s director.

In addition, new studies linking climate change to mass shifts in animal populations and ranges have demonstrated that the threatened effects are more powerful and widespread than previously known.  In addition, natural selection is already causing plant and animal species extinctions and genomic alterations.  Tropical regions – where the most biodiversity is – will begin experiencing severe effects sooner than temperate zones – within the next six years or so – but only by two or three decades.

The clearing of tropical rain forests in order to establish more palm groves for the production of palm oil has implications beyond the effects of deforestation itself.  Deep within these forests reside populations of unknown viruses like Ebola and Zika, and the driving of reservoir hosts into close proximity with humans will increase the likelihood that the diseases caused by them will enter the human population.  A National Public Radio feature interviewed a representative of EcoHealth Alliance who is studying this frightening phenomenon.

Yet, amidst it all, there is good news to be celebrated.  Ireland has become the first country to completely divest from fossil fuels.  Texas (yes, oil-driven Texas) has become the nation’s leader in the generation of electrical power from wind.  The Governor of Maryland issued an order banning oil and gas exploration by hydraulic fracturing (fracking) in the State.  The news about President Trump “eliminating” EPA rules limiting protections against environmental depredations by the mining and burning of coal is overstated. The president cannot unilaterally strike down regulations and rules.  Administrative laws are laws as much as statutes are, and a procedure must be followed to rescind the, so don’t give up yet!

Xiuhtezcatl Martinez – Image credit: Christian O’rourke for Billboard

Nearest to my heart is the news that my friend and courageous warrior for the planet, Xiuhtezcatl Martinez (who now has his own featured menu on this blog’s home page), continues to produce results from his tireless activism.
Last month he was featured alongside Chance the Rapper in an article in Billboard magazine highlighting the performance side of his activism.

Martinez has also signed a book deal with the prestigious publisher Rodale Books for Rise Up, a work which will combine the amazing story of his life with a collection of hands-on, nuts-and-bolts measures that can be used by individuals and groups to effect change and secure a livable future.  The book will address multi-media actions, as exemplified by Martinez’s own skills as a writer, rapper, poet, speaker, artist, and organizer.  Watch for it this fall!

He and his co-plaintiffs have won the right to continue their pursuit of a livable future through the courts in the case of Juliana et al., v. United States, which was featured in Rolling Stone last month. Also anyone flying JetBlue airlines can currently view the Vice segment that featured this case (or watch it here).

In another case, in which he is lead plaintiff, Martinez v. Colorado Oil and Gas Commission, on March 24, 2017, the Colorado Court of Appeals reversed a decision of the State’s Oil and Gas Conservation Commission, thereby giving Martinez and his co-plaintiffs a victory in a matter they began pursuing nearly four years ago.  The perseverance of these young people (all members of Earth Guardians, a worldwide organization based in Boulder, Colorado) to press their case through the exhausting and tortuous legal process is a testament to what can be accomplished by determination and will.

The basis of the case turns on a petition submitted by the plaintiffs on November 15, 2013.  Under Colorado law, citizens may petition the State government to promulgate a rule (which, as noted above, is a form of law). The case of Martinez addresses the plaintiffs’ petition for the Oil and Gas Commission to issue a rule suspending all acquisition of petroleum products by fracking in the State until it can be proven that there will be no adverse effects on human health or the environment.  Knowing what we know about the effects of fracking, such a rule would stop such activity in Colorado now and for the foreseeable future.

Of course, as Frederick Douglass taught us, “Power concedes nothing without a demand.”  Martinez and his group, with the assistance of James Hansen and Our Children’s Trust, submitted their demand to the Commission, which, after public comment, denied it on the basis that they did not have the authority to hold the interests of the public paramount in decision-making.  The Commission’s defense broached a serious question in environmental regulation.

This question was around when I began working for the Ohio Environmental Protection Agency in 1973, and it asks this: “What is the function of an environmental regulatory agency?  Is it to represent the interests of the people and the environment against the entrenched interests of money and exploitation, or is it to strike a balance between the two?” In other words, is an environmental regulatory agency’s job to protect the environment, or just to license polluters?  More broadly, does any regulatory agency in any area – finance, commerce and labor, health, etc. – have a responsibility to advocate for the public interest above private interests?

The Oil and Gas Commission contended that their charge was merely to ensure a balance between public and private interests.  The appeals court, in its 2-1 decision, determined otherwise, saying, “We therefore conclude that the commission erred in interpreting [the Oil and Gas Conservation Act] as requiring a balance between development and public health, safety and welfare.”  That is to say, the Commission is allowed to decide that children’s health and the future are more important than the acquisition of wealth.

The issue, of course, is not resolved yet. The appeals court determined only that the Commission must accept and act on the petition to halt fracking and that it does indeed have the authority to consider human health and the environment first. It does not tell the Commission how it must decide.  The interests of money, in the form of the American Petroleum Institute and others, have intervened against the plaintiffs in this case, and they have deep pockets, powerful lawyers, and plenty of other resources.

However, the victory is significant.  Every great legal case evolves from smaller precedent cases.  In this instance, a court has required a State agency to pay attention to citizen’s demands.  This will aggregate with other decisions around the country, and perhaps eventually some United States Supreme Court case will determine that regulatory agencies have a duty to ensure that public property is used in the public interest.

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